Featured Article: Citizen Enforcement in the Environmental Impact Assessment Process in the Caribbean

This resource is part of a series that INECE is conducting which profiles selected articles from the Proceedings of the 9th International Conference on Environmental Compliance and Enforcement.

In this article, Danielle Andrade, Carole Excell, and Candy Gonzales explore citizen enforcement of procedural rights in the environmental impact assessment process in Belize and Jamaica. The article serves to assess public involvement in procedural rights of environmental impact assessments (EIA) in the Caribbean since their introduction in the 1990s, and stems from the conviction that “public participation and access to justice in environmental decision-making …[is] central to the sustainable development agenda.” The authors approach this by considering legislation in Belize and Jamaica, which have different approaches, and observing the failures in law and practice of their experience.

As mentioned by the authors, the Freedom of Information Act of Belize has limited use in the EIA process because the time frame often hinders adequate access to documents of relevance necessary for fruitful public involvement. Stipulations give the public no right to do an early review of a project proposal or to comment on the scope of an EIA. The public is, however, entitled to participate in the process during and after its development. Problems include the lack of procedural provisions in the case of an inadequate response by competent authorities. Moreover, there is no requirement to hold public meetings, which limits the opportunity for the public to question the project being proposed. In terms of access to justice, public participation is carried through judicial review, which does not lead to a revision of decisions. Other problems faced are due to the high costs of litigation and the “lack of standing to bring an action against private corporations for breach of environmental law.”

In Jamaica, the Access to Information Act also has limited usefulness “because of the time frame for response to a request.” The Natural Resources Conservation Authority (NRCA) manages EIA procedures without formal legal requirements, meaning that it is in the discretion of NRCA to decide if an EIA is required and if public notification is to be released. Moreover, there is “no statutory duty to consult the public or a right[of the public] to participate in EIA decisions.” As a result, the public is invited to hearings only if NRCA so chooses. The procedure of public presentations is also discretionary. Access to justice in Jamaica is limited in the sense that citizens have no right to litigate environmental law other than by requesting judicial review from the Supreme Court, often with costs to the litigant, which further deters public involvement.

The article moves on to outline the history of citizen enforcement of EIA provisions in the Caribbean, claiming that the last ten years have led to “only a handful of judicial review cases … from Jamaica, Belize, Trinidad, the British Virgin Islands and the Bahamas.” To offer case examples, the authors describe two judicial review procedures: the Chalillo Dam case in Belize and the Pear Tree Bottom hotel project case in Jamaica. The Chalillo Dam case involved the building of a dam in forest reserve lands with “the highest density of endangered and rare animal species in Belize.” Concerned about the bias of political leaders in support of the project, the judicial review was placed under the premise of the disregard to public comments and inadequate studies of the site in the EIA. Ultimately, the Court of Appeals decided that although the EIA was flawed and that public comments were disregarded, the errors were not significant enough to reverse the approval that the Department of the Environment had already granted to the project. Despite the decision, judges involved in the case stated that “the rule of law must not be sacrificed to foreign investment, however desirable.”

In comparison, the Jamaican Pear Tree Bottom hotel project was to be located in an ecologically significant coastland, and had received approval by the Natural Resources Conservation Authority. Judicial review action questioned the involvement of other government agencies and the legitimacy of public meetings during the EIA process. The court determined that the NRCA had circulated incomplete EIA documents and limited the access of information to the public in the process. Moreover, they mentioned the inadequacy of procedures followed as far as public involvement.

After determining the need to establishing a more comprehensive system, the authors conclude by offering some first steps to be taken by the countries mentioned to improve environmental governance. The authors underline the need to foster public involvement and state that “the cases provide a welcome evidentiary basis to promote reform aimed at clarifying procedural rights in these countries.”

Whereas the article focuses on the Caribbean region, it is important to note that the challenges observed and the observations regarding the framework necessary to enhance public involvement and environmental rule of law are not restricted to the region.